New Delhi, August 27: A five-judge Bench of the Supreme Court on Thursday held that States can sub-classify Scheduled Castes and Scheduled Tribes in the Central List to provide preferential treatment to the “weakest out of the weak”.

The Constitution Bench led by Justice Arun Mishra said reservation has created inequalities within the reserved castes itself. There is a “caste struggle” within the reserved class as benefit of reservation are being usurped by a few, the court pointed out.

“The million-dollar question is how to trickle down the benefit to the bottom rung. It is clear that caste, occupation, and poverty are interwoven. The State cannot be deprived of the power to take care of the qualitative and quantitative difference between different classes… to take ameliorative measures,” Justice Mishra wrote for the Constitution Bench, The Hindu reported.

With this, the Bench took a contrary view to a 2004 judgment delivered by another Coordinate Bench of five judges in the E.V. Chinnaiah case. The Chinnaiah judgment had held that allowing States to unilaterally “make a class within a class of members of the Scheduled Castes” would amount to tinkering with the Presidential list. 

Now with two numerically equal Benches of judges holding contrary viewpoints, the issue has been referred to a seven-judge Bench of the court.

Justice Mishra’s judgment is significant as it fully endorses the push to extend the creamy layer concept to the Scheduled Castes and Scheduled Tribes. The judgment records that “once a mortgage always a mortgage” cannot be pressed into service for submitting that once a backward class of citizens, always such a backward class. “Citizens cannot be treated to be socially and educationally backward till perpetuity; those who have come up must be excluded like the creamy layer,” the judgment said.

He noted that “the entire basket of fruits cannot be given to the mighty at the cost of others under the guise of forming a homogenous class”.

In his 78-page judgment for the Bench, Justice Mishra said the Scheduled Castes and Scheduled Tribes in the Central List do not constitute a “homogenous group”.

The Central List of Scheduled Castes and Tribes is notified by the President under Articles 341 and 342 of the Constitution.

The consent of the Parliament is required to exclude or include castes in the List. In short, States cannot unilaterally add or pull out castes from the List.

However, Justice Mishra disagreed. He reasoned that sub-classifications within the Presidential/Central List does not amount to “tinkering” with it. No caste is excluded from the list. The States only give preference to weakest of the lot in a pragmatic manner based on statistical data.

Preferential treatment to ensure even distribution of reservation benefits to the more backward is a facet of the right to equality, Justice Mishra observed.

“When reservation creates inequalities within the reserved castes itself, it is required to be taken care of by the State by making sub-classification so that State largesse does not concentrate in few hands and equal justice is provided to all,” Justice Mishra wrote.

The judgment is based on a reference to the Constitution Bench the question of law involving Section 4(5) of the Punjab Scheduled Caste and Backward Classes (Reservation in Services) Act, 2006. The legal provision allows 50% of the reserved Scheduled Castes seats in the State to be allotted to Balmikis and Mazhabi Sikhs.

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